UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-51074
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CARLOS GARCIA-FLORES,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(DR-97-CR-196-ALL)
April 22, 1999
Before WISDOM, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:*
A jury convicted Carlos Garcia-Flores of bringing two illegal aliens into the United States for
commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii), and
illegally transporting these unauthorized aliens while inside the United States, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii) and 18 U.S.C. § 2. The district court sentenced Garcia-Flores to concurrent 33-
month terms of imprisonment and concurrent 3-year terms of supervised release. Garcia-Flores
timely filed this appeal. We affirm.
Garcia-Flores first argues that the prosecutor made improper statements during his rebuttal
closing argument that thereby deprived Garcia-Flores of his right to a fair trial. A prosecutor’s
improper comments may constitute reversible error if they substantially affect the defendant’s right
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except in the limited circumstances set forth in 5TH CIR. R. 47.5.4.
to a fair trial.2 In evaluating a claim of prosecut orial misconduct, we must first ask whether the
challenged remark was inappropriate.3 If so, we then determine whether the remark affected the
defendants’ substantial rights.4 Garcia-Flores first takes issue with the prosecutor’s opening comment
on rebuttal that defense counsel’s argument was “[s]moke, confusion, word games, slime”. Even
assuming t hat these remarks were inappropriate, their prejudicial effect was not of sufficient
magnitude to deprive Garcia-Flores of a fair trial.5 Moreover, the district court’s curative instructions
were sufficient to ensure that these remarks did not unduly prejudice the jury.6 Lastly, the evidence
against Garcia-Flores was strong, as two alien witnesses testified that Garcia-Flores had offered to
smuggle them into the United States for money, that he acted as their “guide” as they waded across
the river, and that he drove the truck once inside the United States.7 Garcia-Flores also takes issue
with the prosecutor’s assertions that (1) the jury, to acquit Garcia-Flores, would have to conclude
that the Border Patrol agents were lying; and (2) these agents were too busy to manufacture a case
against Garcia-Flores and would lose their jobs if caught trying to do so. In assessing these
assertions, we “must review the allegedly improper comment ‘in light of the argument to which it
responded.’”8 Because these statements served to rebut defense counsel’s implied arguments, they
were not improper.9
2
United States v. Andrews, 22 F.3d 1328, 1341 (5th Cir. 1994).
3
United States v. Munoz, 150 F.3d 401, 414 (5th Cir. 1998), cert. denied, 119 S. Ct. 887
(1999).
4
Id. at 415. In reaching this determination, we must weigh several factors: “(1) the magnitude
of the prejudicial effect of the statements; (2) the efficacy of any cautionary instruction; and (3) the strength
of the defendant’s guilt.” Id. (internal quotation marks and citation omitted).
5
See id.
6
See id.
7
See id.
8
United States v. Washington, 44 F.3d 1271, 1278 (5th Cir. 1995) (citation omitted).
9
See id.
2
Garcia-Flores next contends that the evidence was insufficient to prove that he had brought
unauthorized aliens into the United States for commercial advantage or private financial gain. We
review the sufficiency of the evidence to determine whether any reasonable trier of fact could have
found that the evidence established guilt beyond a reasonable doubt.10 In making this determination,
we view all the evidence, and all reasonable inferences to be drawn from it, in the light most favorable
to the verdict.11 In the instant case, two alien witnesses testified that they agreed to pay Garcia-Flores
to bring them into the United States, that Garcia-Flores threatened to return them to Mexico if they
failed to pay him, and that Garcia-Flores led them across the river “like a guide”. The evidence was
therefore sufficient to establish beyond a reasonable doubt that Garcia-Flores had brought two aliens
into this country for his own financial gain.12 Although there were some incongruities in the
witnesses’ statements, the jury resolved any discrepancies against Garcia-Flores.13
Finally, Garcia-Flores argues that the district court erred by refusing to provide the jury with
his proposed instruction clarifying the meaning of the phrase “commercial advantage and private
financial gain”. We review a district court’s refusal to provide a requested jury instruction for an
abuse of discretion.14 District courts enjoy substantial latitude in formulating jury instructions.15
Accordingly, we will reverse only if the requested jury instruction: (1) was a substantially correct
statement of the law; (2) was not substantially covered in the charge as a whole; and (3) concerned
an important point in the trial, the omission of which seriously impaired the defendant’s ability to
10
United States v. Martinez, 975 F.2d 159, 160-61 (5th Cir. 1992).
11
See id. at 161.
12
See id. at 160-61.
13
See United States v. Gonzalez, 76 F.3d 1339, 1346 (5th Cir. 1996) (the jury may choose
among reasonable constructions of the evidence).
14
United States v. Asibor, 109 F.3d 1023, 1034 (5th Cir. 1997), cert. denied, 118 S Ct. 638
(1997).
15
Id.
3
present an effective defense.16 Although it is reversible error to refuse a charge on a defense theory
for which there is an evidentiary foundation, and which, if believed, would be legally sufficient to
support an acquittal, a trial judge is under no obligation to give a requested jury instruction that
misstates the law.17 Garcia-Flores concedes by implication that his requested instruction has no
foundation in the text of 8 U.S.C. § 1324(a)(2)(B)(ii). His proposed clarification was suggested by
an application note to U.S.S.G. § 2L1.1, which requires payment or the expectation of payment
before an upward adjustment for smuggling “for profit” may be imposed. Given § 1324's silence on
the subject, however, Garcia-Flores’s requested instruction was not a substantially correct statement
of the law. Accordingly, the district court did not abuse its discretion by refusing to provide the
jurors with the requested instruction.
AFFIRMED.
16
Id.
17
See United States v. Maseratti, 1 F.3d 330, 336 (5th Cir. 1993).
4